22 Misc. 676 | N.Y. Sup. Ct. | 1898
The creditors having been satisfied, the accounting of the assignee is with his assignor respecting the surplus coming to the latter. The chief contention arises over a payment of $2,500 made by the assignee in compromise of a claim for rent to accrue upon a lease. When the assignee took possession of the assignor’s stock in trade on January 30, 1896, it was in the premises Flo. 3 Maiden Lane, of which the assignor had a lease with an- unexpired term of four years and three months, at an annual rental of $8,000 to May, 1897, and $9,000 thereafter, the lessor having the right in case of nonpayment of rent to re-enter and relet on account of the tenant. The assignee went into the premises to prepare- to- dispose of the stock, and on February 29, 1896, agreed with the lessor to pay him $2,500 for the cancellation of the lease and release of rent after May 1, 1896. This was against the assignor’s objection, and the assignee, without notice to him, obtained on April 15, 1896, an order of the court authorizing the payment. On April' 15, 1896, the assignee disposed of the stock and vacated the premises, and. paid rent for his use and occupation. The assignor objected to the allowance of such payment of $2,500 as a necessary or proper disbursement, and the referee disallowed it. The assignee claims that it was a payment for the benefit of the estate, as the lessor had the option to allow .the premises to remain vacant and claim the whole rent reserved by the lease upon the authority
’Ordered accordingly.